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Election Law @ Moritz

Election Law @ Moritz


The Constitution Needed a Judicial Assist

            “The majority contends that its counterintuitive reading of ‘the Legislature’ is necessary to advance the ‘animating principle’ of popular sovereignty.” With this sentence in his dissent (at page 14), Chief Justice Roberts gets to the heart of the debate in today’s 5-4 decision in the Arizona redistricting case.

            Roberts undoubtedly is correct that the much more straightforward reading of the term “Legislature” is to say that it means the institutional entity that consists of representative lawmakers elected by the citizenry, rather than to encompass the citizenry itself when it engages in a direct lawmaking capacity through the device of a referendum or ballot initiative. This more straightforward reading, as Roberts points out, sits more easily with other uses of the term “Legislature” in the U.S. Constitution, most especially the provision—subsequently superseded by the Seventeenth Amendment—that gave the power to elect U.S. Senators to the “Legislature” of each state, rather than to the citizenry.

            But this straightforward reading would have the pernicious consequence of prohibiting the states from attempting to curb the evil of partisan gerrymanders by taking the power to draw congressional districts away from state legislatures and putting this power instead in the hands of independent redistricting commissions designed to be nonpartisan. As today’s opinion for the Court (written by Justice Ginsburg) observed on its very first page,       partisan gerrymandering has no legitimate defense in a democracy; it’s only a question of what means are available under the Constitution to combat it.

            Chief Justice Roberts (for himself and the three other dissenters) acknowledged the evil of partisan gerrymandering, but did not believe that distorting the language of the U.S. Constitution was justified by the desire to let states use independent commissions for congressional redistricting. Roberts pointed to amending the U.S. Constitution as the way to give the states this power, just as the Seventeenth Amendment was added to provide for direct election of U.S. Senators.

            The problem with the Chief Justice’s argument on this point is the extreme difficulty of amending the U.S. Constitution. Roberts himself (on his own first page) noted how long and arduous the process was to achieve the adoption of the Seventeenth Amendment, with success finally coming in the Progressive Era. If anything, American politics has become even more sclerotic, making it virtually impossible to achieve a constitutional amendment even when the American people persistently and overwhelmingly want it. The Electoral College is a case in point; the American people for decades, by large majorities, have wanted to replace it with direct election of the president, but have been unable to achieve this strong and persistent preference through the means of constitutional amendment.

            Roberts observed that some provisions of our eighteenth-century Constitution are fixed in their meaning, until amended, even if these provisions are undemocratic. We cannot elect “a 25-year-old Senator, or a foreign President” even if we want to, given explicit clauses in the Constitution to the contrary (dissent at 25 n. 6).

            True, but those other clauses are constitutional “straightjackets” providing no interpretative wiggle-room whatsoever. The word “Legislature,” even though its much more natural reading is to refer to the institutional body of elected representatives, has some wiggle-room in it. It can be construed to mean whatever authority enacts the laws of a state, including the state’s citizenry when it undertakes the lawmaking authority directly.

            Thus, the question in the case boils down to whether the Court was justified in using that little bit of wiggle-room to achieve its desired result.

            The Court’s opinion was unusually candid in the results-oriented nature of its reasoning. “We resist reading the Elections Clause to single out federal elections as the one area in which the States may not use citizen initiatives as an alternate legislative process,” the Court said (at page 28). Elsewhere (at 31), the Court added that “it would be perverse to interpret the term ‘Legislature’ in the Elections Clause to exclude lawmaking by the people.”

            In other contexts, it might make sense to be wary of judicial manipulation of constitutional text to achieve a “policy” goal (as Roberts pejoratively put it). But here what is to be gained by insisting upon a literal reading of the term “Legislature”? Vindicating the particular method of constitutional amendment set forth in Article V of the original document?

            The Constitution sets forth a plan for a “republican form of government,” to use the phraseology favored by the Framers. That plan has been remarkably successful in many respects over the life of the nation. But that plan has also been short-sighted in other aspects—notably, again, the Electoral College, which never worked as intended and which James Madison himself (a principal drafter of the original Constitution) recognized needed replacement in the 1820s.

            The particular procedures for constitutional amendment set forth in Article V have never been among the document’s strongest features. Yes, they prevent altering the fundamental charter too hastily or easily. But they also impede constitutional adjustments whose time is far overdue. The Framers did not perfectly calibrate the balance between making textual changes to the document too easy or too difficult.   

            When the electorate itself is divided among reasonable arguments concerning whether the Constitution should be read (or amended) to achieve a particular policy result, there is a strong case to be made for the U.S. Supreme Court staying out of the policy debate by siding with whatever the more straightforward reading of the existing Constitution entails—even when doing so consigns one side of the policy battle to the uphill challenge of amending the text using the procedures of Article V. But when there is no such divide on the relevant policy matter, then there is no good reason to defend literalism for the sake of literalism—or to make achievement of the policy objective so much harder by forcing it to resort to the high hurdles of Article V.

            What is especially striking about the Arizona redistricting case is that no one is defending the practice of partisan gerrymandering. Even more to the point, no one is arguing as a matter of policy that states should be deprived of the option of using independent commissions, rather than conventional legislatures, to draw congressional districts. Roberts, to be sure, questions whether independent commissions will prove to be as nonpartisan in practice as their advocates claim. But he acknowledges that states can use independent commissions to draw the district lines for their own state legislatures, and he recognizes why states would want the constitutional power to do so for congressional districts as well. Thus, the relevant policy here is not whether a state should adopt an independent commission over other method of congressional districting; rather, the policy question is simply whether states should be denied the right to experiment with this particular tool in the anti-gerrymandering toolkit. No one—certainly not Roberts—is attempting to make this policy argument.

            Thus, in this particular context, to stand on literalism is to do so purely for its own sake. It serves no higher constitutional value here. The better course in this situation is to do as the Court did: let’s give the term “Legislature” not its most natural reading, but a more “republican” one—one that better achieves the aim of popular sovereignty.

            Enabling states to employ independent commissions for congressional redistricting may ultimately prove unsuccessful in resisting the scourge of partisan gerrymanders. But massaging the Constitution’s text to give the states the chance to try this approach, without having to jump through the hoops necessary for a constitutional amendment, is a decision that vindicates the reason why we have the Constitution in the first place: to provide a workable structure of government through which the American people can continue to conduct their collective experiment in self-government.

Edward B. Foley is Director of the Election Law @ Moritz program. His primary area of current research concerns the resolution of disputed elections. Having published several law journal articles on this topic, he is currently writing a book on the history of disputed elections in the United States. He is also serving as Reporter for the American Law Institute's new Election Law project. Professor Foley's "Free & Fair" is a collection of his writings that he has penned for Election Law @ Moritz. View Complete Profile


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